C. NARAYANAN, S/O.CHANE vs THE STATE OF KERALA

The revision petitioner herein is the accused in S.C

975/2000 of the Court of Session, Kasaragod. He faced

prosecution before the learned Assistant Sessions Judge,

Hosdurg under Section 55 (g) of the Kerala Abkari Act (for

short" the Act"), on the allegation that at about 4 p.m on

25.8.1998, he was found possessing 20 litres of wash in a

plastic can of 30 litres capacity. The offence was detected

by an Excise Inspector of the Special Squad, Kasaragod.

He arrested the accused on the spot, and seized the

contraband articles as per a mahazar. On the basis of the

said arrest and seizure, an Excise Inspector of the

Neeleswar Excise Range registered the crime and

occurrence report. Another Excise Inspector of the Range

conducted investigation and submitted final report in court.

The accused appeared before the learned trial Judge and

pleaded not guilty to the charge framed against him.

The prosecution examined seven witnesses in

the trial court, and proved Exts.P1 to P9 documents. The

MO1 property was also identified during trial. The accused

denied the incriminating circumstances when examined

under Section 313 Cr.P.C. He did not adduce any evidence

in defence.

On an appreciation of the evidence, the trial court

found the accused guilty. On conviction, he was sentenced

to undergo simple imprisonment for one year, and to pay a

fine of 1 lakh by judgment dated 28.11.2005. Aggrieved by

the judgment of conviction, the accused approached the

Court of Session, Kasaragod with Crl.A 370/2005. In appeal,

the learned Sessions Judge confirmed the conviction, but

modified and reduced the sentence. Accordingly, the

substantive sentence was reduced to simple imprisonment

for three months by judgment dated 17.11.2006. Now the

accused is before this Court in revision.

On hearing both sides, and on a perusal of the

materials, I find that there is a serious legal infirmity in this

case, the benefit of which must necessarily go to the

accused. This Court has consistently held in so many

decisions that the various functions under the Act can be

discharged only by the Officers specifically authorised and

appointed by the Government as Abkari Officers under

Section 4 of the Act. In 1967, the Government of Kerala

issued a notification under Section 4 of the Act as SRO

234/1967 by which different powers under the Act were

conferred on different categories of Excise Officials of the

regular excise wing. The members/officers of Special

Squads like the Excise Intelligence Squad or the Excise

Enforcement and Anti-Narcotic Squad were not given powers

as per the said Notification. Such categories of officers got

powers under the Act only in 2009, as per the Government

Notification SRO 361/2009 dated 8.5.2009. This Court has

settled the legal position that even the benefit of the

proviso to the 1967 Notification as regards detection could

be availed only by the categories of officers covered by the

Government Notification. Members of Special squads, who

are not covered by the 1967 Notification, cannot avail the

benefit or privilege of the said proviso and proceed to

detect offences within excise ranges. In this case, the

offence was detected by PW1 who was only a Preventive

Officer of the Special Squad. Of course, the other functions

were discharged by competent officers. That will not correct

the illegality vitiating the prosecution that the detection was

made by an incompetent officer. On this ground itself, the

accused is entitled for acquittal. So the factual aspects need

not be probed into.

There is yet another infirmity in this case that

production of the property before the court was delayed by

20 days. The detection was made in this case on 25.8.1998,

but the properties were produced in court only on

14.9.1998. There is no satisfactory explanation for this

delay. It is not known in whose custody the property was

during this period. Thus, there is no material to rule out the

possibility of tampering with the property. On this ground

also, the accused is entitled for acquittal.

In the result, this petition is allowed. The revision

petitioner is found not guilty of the offence under Section 55

(g) of the Kerala Abkari Act and he is acquitted of the said

offence in revision. Accordingly, the conviction and

sentence against him in SC 975/2000 of the court below

and confirmed in appeal will stand set aside and the revision

petitioner will stand released from prosecution.